dismissed EB-1C Case: Electronics Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 17,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an exporter of computer hardware and other electronics, seeks to permanently employ 
the Beneficiary as its president and chief executive officer (CEO) under the first preference 
immigrant classification for multinational executives or managers. See Immigration and Nationality 
Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. 
employer to permanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; (2) the Beneficiary has been employed abroad in a managerial or 
executive capacity; and (3) the Petitioner has the ability to pay the Beneficiary's proffered wage. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by not 
giving enough consideration to the Petitioner's evidence and to the prior approvals of nonimmigrant 
petitions filed on the Beneficiary's behalf. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three 
years preceding the filing of the petition, has been employed outside the United States for at least one 
year in a managerial or executive capacity, and seeks to enter the United States in order to continue to 
render managerial or executive services to the same employer or to its subsidiary or affiliate. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
The petition must include a statement from an authorized official of the petitioning United States 
employer which demonstrates that the beneficiary has been employed abroad in a managerial or 
executive capacity for at least one year in the three years preceding the filing of the petition, that the 
Matter of R-Inc 
beneficiary is coming to work in the United States for the same employer or a subsidiary or affiliate of 
the foreign employer, and that the prospective U.S. employer has been doing business for at least one 
year. See 8 C.F.R. § 204.5(j)(3). 
II. ABILITY TO PAY 
' 
The Director found that the Petitioner did not establish its ability to pay the Beneficiary's proffered 
wage as required by the regulation at 8 C.F.R. § 204.5(g)(2). The Director based this conclusion:.on 
figures in the Petitioner's 2012 and 2013 income tax returns. 
On appeal, the Petitioner submits copies of its returns from 2014 (the year of filing) and 2015. The 
Petitioner paid the Beneficiary a partial salary in both years, and the tax returns show sufficient net 
current assets to pay the balance. Therefore, the evidence submitted on appeal is sufficient to 
overcome the Director's finding, and establish the Petitioner's ability to pay the Beneficiary's salary. 
We withdraw the Director's finding that the Petitioner has not established its ability to pay the 
Beneficiary's salary. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity; and that the Beneficiary's former foreign employer did not employ 
him abroad in a managerial or executive capacity. (The Petitioner has offered inconsistent 
statements as to whether the Beneficiary's past and intended future employment was, and will be, 
managerial or executive.) 
The definition of the term "managerial capacity". is "an assignment with~n an organization in which 
the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
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Matter of R- Inc 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). The Act defines the term "executive 
capacity" as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors; or stockholders of the organization. 
Section 1 01 (a)( 44 )(B) of the Act. If staffing levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration 
Services (USCIS) must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 1 01 (a)( 44 )(C) of the Act. 
A. U.S. Employment in a Managerial or Executive Capacity 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
1. Duties 
When examining the executive or managerial capacity of a given beneficiary, we will look first to 
the petitioner's description of the job duties. The Petitioner's description of the job duties must 
clearly describe the duties to be performed by the Beneficiary and indicate whether such duties are in 
a managerial or executive capacity. See 8 C.F.R. § 204.5(j)(5). 
The Petitioner listed the Beneficiary's responsibilities and the approximate percentage of time he 
devotes to each: 
In his current managerial capacity, [the Beneficiary] is responsible for determining 
the day-to-day and long term investment needs and solutions that deliver the greatest 
value to the business, including: 
3 
Matter of R- Inc 
Review reports submitted by the Vice President for Marketing and Operations in 
order to recommend approval or suggest the necessary changes; (10% of time 
carrying out this managerial responsibility). 
Overview the monthly financial statements prepared by the accountant, review 
financial statements, sales and activity reports, and other performance data to measure 
productivity; (10% of time carrying out this managerial responsibility). 
Oversee the demand planning and inventory management, logistics performance 
against targets, benchmarks and/or service agreements. Meet with the Vice President 
for Marketing and Operations in order to meet customer requirements; (15% of time 
carrying out this managerial responsibility). 
[The Beneficiary] will drive operations across international manufacture[r]s and/or 
vendors and to optimize[] production, planning, and purchasing in each with 
standardized practices. He will be responsible for making decisions as to where 
products are manufactured on the basis of efficiency and cost as well as optimizing 
production loads; (20% of time carrying out this managerial responsibility). 
Develop a reliable cash flow projection and budgeting process, drive improvement in 
this process through education of Vice President of Marketing, Operations Manager 
and Accountant; (20% of time carrying out this managerial responsibility). 
Finally, perform employee performance appraisals, counseling, hiring, and 
terminations as needed. Identify opportunities for employee career training. As [the 
Petitioner's] turnover and gross profit increase, [the Beneficiary] will be needed to 
identify job openings, oversee the hiring process with a concentration on correct skill 
fit, alignment of responsibilities, and experience. (25% of time carrying out this 
managerial responsibility). 
The Director issued a .request for evidence (RFE), stating that the Petitioner had not provided enough 
information to establish the Beneficiary's eligibility. In response, the Petitioner stated that the 
Beneficiary continues to run the foreign company from the United States, and spends 20% of his 
time communicating with officials of the foreign company, and 10% of his time directing the 
management of the foreign company and "analyzing political and economic implications of Egypt's 
current situation and its impact on US and foreign company operations." Presumably these ongoing 
duties would be in addition to his duties relating to the U.S. company, but the resulting percentage 
figures add up to 130%.1 
1 The Director found that the Beneficiary's ongoing work on behalf of the foreign company would detract from the 
Beneficiary's work for the petitioning U.S. entity, but both companies are part of the same multinational organization 
and there is a connection between what the two companies do (the Petitioner exports merchandise to the foreign entity). 
4 
Matter of R- Inc 
In the same letter, the Petitioner provided a different percentage breakdown: 
• Provides leadership to plan, develop, implement, and market the products sold 
within and outside the U.S. (10%) 
• Analyze corporate financials, sales and related reports. ( 1 0%) 
• Negotiate corporate contracts with service providers .... (15%) 
• Negotiate corporate sales partner initiatives with various companies whose 
products we represent and sell within and outside the U.S .... (15%) 
• Contribute to the development of strategic goals and objectives as well as the 
overall management of the U.S. and foreign entity. 
• Maintain continuous lines of communication, between both companies with daily 
communications concerning corporate and business operations, sales and 
marketing initiatives. (15%) 
• Represent the organization externally, as necessary, particularly in banking, credit 
and distribution partnerships. (1 0%) 
• Develop and initiate new Virtualization Hosted Services .... (15%) 
• Analyze the company's expansion efforts and budgetary issues related to 
Virtualization Hosted Services. ( 1 0%) 
The Petitioner did not specify a time percentage for "contribut[ing] to the development of strategic 
goals and objectives as well as the overall management of the U.S. and foreign entity," but the other 
percentages add up to 100%, implying that the Beneficiary would devote minimal time to that 
responsibility. 
The Petitioner did not explain why it submitted multiple overlapping, but different and distinct, 
percentage breakdowns of the Beneficiary's claimed duties with the petitioning company. With 
respect to the claim that the Beneficiary would spend a quarter of his time on virtualization hosted 
services, the Petitioner did not provide those services at the time of filing. Instead, in the later RFE 
response, the Petitioner stated that plans were in preparation to introduce those services and "hire 
several more persons" to provide them. The Petitioner must satisfy all eligibility requirements for 
the immigration benefit from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(l). New products and services that the Petitioner began to offer at a later date cannot 
retroactively show that the Petitioner already met the requirement at the time of filing. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971) (USCIS cannot properly approve the petition 
based on factors that did not exist at the time of filing). 
In the denial notice, the Director found the listed responsibilities to be vague and lacking specific 
information about the Beneficiary's day-to-day tasks. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
Therefore, the Beneficiary's continued responsibility over the foreign entity would not be inconsistent with classification 
as a m~ultinational executive or manager. 
5 
Matter of R- Inc 
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties 
themselves reveal the true nature of the employment. !d. Therefore, reciting a beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. 
On appeal, the Petitioner submits a new two-page job description, divided into five major categories: 
• Planning (25%) ' 
• Management (25%) 
• Financial Management (15%) 
• Human Resources Management (15%) 
• Marketing and Public Relations (20%) 
The percentages shown on the new description do not match either of the previous versions. The 
Petitioner does not explain why it has submitted three divergent job descriptions for the same 
position. The assertion that the Beneficiary would devote 15% of his time to hiring and personnel 
matters lacks credibility given the very small size of the Petitioner's staff. The Petitioner states that 
the Beneficiary intends to grow the company, but he has already been the Petitioner's president and 
CEO for several years and the company has not grown significantly during that time. 
The Petitioner states that the company has begun adding new services, but there is no indication that 
the Petitioner provided those services at the time of filing in late 2014. As we have already noted, 
the Petitioner must establish eligibility at the time of filing and remain eligible thereafter. 
2. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
We also consider the proposed position in light of the nature of the Petitioner's business, its 
organizational structure, and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a Petitioner has, USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager. "2 
2 
Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991 ); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
6 
Matter of R- Inc 
The Petitioner's organizational chart showed five employees: 
President and General Manager [the Beneficiary] 
Vice President (VP)-Sales Manager 
I 
Accountant VP-Marketing and Operations 
Computer Data Entry and 
Shipping Specialist 
The Petitioner provided brief job descriptions for the Beneficiary's subordinates: 
[The] VP - Sales Manager ... currently manages the sales administration function, 
operational performance reporting, streamlining processes and systems wherever 
possible .... 
[T]he Company's VP- Marketing and Operation Manager ... negotiates contracts 
with U.S. and international suppliers. [This official] develops and oversees 
maintenance of the Company's image and identity which includes the use of logos 
and signage, in addition to analyzing operations to evaluate [the company's] 
performance .... 
[T]he Company's Accountant . .. examines corporate statements to ensure accuracy, 
ensure that statements and records comply with federal and international trading laws 
and regulations, and organize and maintain financial records .... 
. . . [The] Computer Data Entry and Shipping Specialist ... maintains records of 
goods ordered and received, prepares and processes requisitions and purchase orders 
for supplies and equipment. She also analyzes markets and delivery systems to assess 
present and future material availability. 
In the RFE, the Director asked for job descriptions and payroll documentation for the Beneficiary's 
subordinates. The Director added: "based on the company's structure, it does not appear that the 
petitioner will need a full-time accountant." 
In response, the Petitioner. submitted an updated organizational chart. In addition to five unfilled 
positions relating to the Petitioner's planned virtualization hosted services, the chart listed four 
positions, shown below with salary information from mid-20 16, when the Petitioner responded to 
the RFE: 
• President and CEO [the Beneficiary], $66,000/yr. 
• VP-Marketing and Operations [the Beneficiary's spouse] $24,000/yr. 
• Accounting Application Specialist [not the accountant listed previously], $24,000/yr. 
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Matter of R- Inc 
• Computer Data Entry and Shipping Specialist, $14,400/yr 
The payroll records show all of these positions as full-time (173.33 hours per month), but the salary 
for the last listed position is below minimum wage. 
IRS Forms W-2, Wage and Tax Statements, show low and inconsistent salaries paid to the 
Petitioner's employees in 201,4 (the year of filing) and 2015: 
2014 2015 
• The Beneficiary: $40,000 $20,000 
• VP-Marketing and Operations: 20,000 14,000 
• VP-Sales Manager 12,000 2000 
• Accountant 15,000 
• Data Entry and Shipping Specialist: 12,000 1200 
Quarterly tax documents show that the Beneficiary and his spouse were the Petitioner's only paid 
employees during the last three quarters of 20 15. 
The Petitioner submitted printouts of email correspondence between the Beneficiary and various 
companies. The Petitioner stated that this correspondence demonstrated the Beneficiary's 
"executive or managerial position." The correspondence does not directly address the Beneficiary's 
day-to-day duties or the proportion of time that he devotes to managerial or executive tasks. In one 
message, dated March 9, 2016, the Beneficiary expressed an interest in becoming an authorized 
reseller for a particular brand of computer, and asked for an opportunity "to discuss the chances of 
also becoming a c,ertified service center." (The company responded that it was not certifying service 
centers at that time.) The Petitioner does not claim to employ sales personnel or computer 
technicians who would have provided repair service. The Petitioner's revised organizational chart 
from May 2016 (after the above email exchange) shows some planned future hires, but not in sales. 
Denying the petition, the Director found that the Petitioner does not have sufficient staff to relieve 
the Beneficiary from performing non-qualifying operational and administrative tasks, and that the 
record did not support the Petitioner's claim that all of its employees worked full-time. The Director 
acknowledged that the Beneficiary's tasks need not be entirely those of a manager or executive, but 
they must primarily fit one of those descriptions. The Director found that the Beneficiary has the 
required level of authority over the petitioning company, but not that the Petitioner will employ the 
Beneficiary in a primarily managerial or executive capacity. 
On appeal, the Petitioner asserts that it has "sufficient staffing to support a managerial role," that 
subordinate employees "are performing the day to day operation of the business," and that the 
( 
Beneficiary "logistically could not be performing the day to day operation of the business." The 
Petitioner does not elaborate on any of these points on appeal, saying only that it has already 
submitted enough evidence to establish those propositions. 
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Matter of R- Inc 
The Petitioner states that it has submitted payroll records to show its staffing level. The Director, 
however, noted that those same records show that the Beneficiary and his spouse were the 
Petitioner's only employees for most of2015. If the Petitioner was able to conduct business during 
that time - which the Petitioner claims is the case -then the company was able to function with only 
the Beneficiary and one other employee. On those occasions when the Petitioner has had other 
employees, several earned part-time salaries while the Petitioner claimed they worked full-time. At 
the same time, the Petitioner has sought to become an authorized service provider for various 
companies without adding technicians to its staff or making demonstrable plans to do so, which 
implies that some of the Petitioner's existing employees would perform repairs and related services. 
The Petitioner's evidence regarding its staffing raises more questions than it answers, and does not 
establish that the Petitioner will employ the Beneficiary in a managerial or executive capacity. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The Petitioner has not 
specified whether the Beneficiary will be a personnel manager or a function manager. 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial employees. The statute plainly states that a "first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional." Section 10l(a)(44)(A)(iv) of the Act; 
8 C.F.R. § 204.5(j)(4)(i). If a beneficiary directly supervises other employees, the beneficiary must 
also have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 204.5(j)(2). 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor.3 The Petitioner stated that the VP-marketing and operations "has a bachelor's degree in 
graphic arts design establishing her as a professional in the field of marketing," and that the 
accountant "is a finance and accounting professional." 
In the RFE, the Director acknowledged the Petitioner's claim that the accountant and the VP­
marketing and operatipns are professionals, but found this claim not to be well-supported. The 
Director noted that the accountant's bachelor's degree is in English rather than any accounting­
related field, and found that the Petitioner had not explained how the VP-marketing and operations 
held a professional position. As noted above, the Petitioner no longer employs an accountant, 
making any discussion of that position moot. Beginning in 2016, the Petitioner employed an 
accounting application specialist not previously identified. According to her resume, this individual 
3 
Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the 
Act states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
9 
Matter of R- Inc 
holds three academic degrees in agriculture and agricultural science, specializing in rural sociology. 
The Petitioner did not explain the relevance of this training to her work with accounting software. 
' 
The Petitioner stated that the VP-sales manager was on "long-term sick leave," and so her duties had 
devolved upon the VP-marketing and operations (the Beneficiary's spouse). The Petitioner listed the 
duties of the VP-marketing and operations: 
• Perform market analysis of potential clients and research products and technology 
best suited for export .... 
• Research, analyze and report on market conditions and competitive sales data in 
order to report on and generate a larger client base. 
• Liaise with the Sales Manager in Egypt to develop sales targets and competitive 
pncmg. 
• Analyzing import of other major products to the U.S. 
Although the Beneficiary's spouse has a title suggesting managerial or executive authority, the 
duties described include operational and administrative functions such as conducting research and 
preparing reports based on that research. 
Although the Petitioner's organizational chart shows a hierarchical structure that purports to include 
managers and layers of authority, the Petitioner has not shown that the Beneficiary's subordinates 
qualify as managers, professionals, or supervisors. The Petitioner has not established that it seeks to 
employ the Beneficiary primarily as a personnel manager. 
' 
The Petitioner has not established, in the alternative, that it will employ the Beneficiary primarily as 
a "function manager." The term "function manager" applies generally when a beneficiary's 
managerial role arises not from supervising or controlling the work of a subordinate stafi but instead 
from responsibility for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) ofthe Act. The statute and regulations do not define the term "essential function." 
If a petitioner claims that a beneficiary will manage an essential function, that petitioner must clearly 
describe the duties to be performed in managing the essential function, i.e., identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties dedicated to managing the essential function. See 8 C.F.R. § 204.5(j)(5). 
In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the 
beneficiary will manage the function rather than perform the duties related to the function. 
The Petitioner has not specifically claimed that the Beneficiary will serve as a function manager, or 
identified the function that the Beneficiary would manage. Because the Petitioner has not described 
the Beneficiary's duties with enough specificity, or established that it has the support staff to relieve 
the Beneficiary from having to perform operational and administrative tasks, the Petitioner has not 
established that the Beneficiary will serve as a function manager. 
Maqer of R-Inc 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Section 101(a)(44)(B) ofthe Act. 
As noted above, the Petitioner claimed two vice presidents at the time of filing, reduced to one in 
early 2015,·but the Petitioner has not established that these positions were truly managerial. For a 
substantial period of time after the filing date, the Beneficiary was one of only two employees, and 
there was no evident management of the company for the Beneficiary to direct. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101 (a)( 44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. Sections 1 Ol(A)( 44)(A) 
and (B) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possesses the requisite level of authority with respect to discretionary decision­
making, the record does not establish that his actual duties, as of the date of tiling, would be 
primarily managerial or executive in nature. 
The Petitioner has not established that it will employ the Beneficiary in a managerial or executive 
capacity in the United States. 
B. Foreign Employment in a Managerial or Executive Capacity 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
1. Duties 
The Petitioner initially stated: 
II 
Matter of R- Inc 
[The Beneficiary] was responsible for establishing, creating, and managing the 
strategic plan for both the foreign and U.S. Companies in his managerial/executive 
role with [the foreign company]. He founded the Egyptian Company in October 
2003, and was integral in establishing the foreign company's overseas development 
and supervising all aspects of client interaction. Moreover, he has been a key leader 
in the research and development of the company. [The Beneficiary] has served as 
President for the foreign business since the Egyptian Company's incorporation in 
2003 until his transfer to the U.S. Company in November 2007. In his capacity as 
President, [the Beneficiary] was responsible for directing and overseeing all 
initiatives associated with the Egyptian Company's early development phase. 
The Petitioner provided a four-part job description for the Beneficiary's former position abroad. In 
the RFE, the Director stated that the Beneficiary's foreign job description lacked detail and did not 
"convey an understanding of the beneficiary's actual position abroad." The Director stated that the 
job description included what appear to be non-qualifying tasks, such as training subordinates. The 
Director asked for a more detailed job description in the form of "a definitive statement from the 
foreign company." 
In response to the RFE, the Petitioner elaborated on some of these elements: 
• Developing a reliable cash flow projection and budgeting process, through the 
education of Vice President and Sales and Operation Managers; (20% of time 
carrying out this managerial responsibility). 
We note that the Petitioner later clarified "education" to mean "training," although the Petitioner did 
not explain how providing training to subordinates (rather than delegating that function to lower­
level employees) "is part of the duties and responsibilities of an executive." 
• Negotiate contracts or approve contracts and agreements with suppliers and 
manufacturers, oversee resolution of vendor grievances and claims; (25% of time 
carrying out this managerial responsibility). 
The Petitioner further stated that "the responsibility to negotiate or approve contracts and agreements 
is a duty typically associated with that of an Executive." 
• Overview the monthly financial statements prepared by the accountant, sales and 
activity reports, and other performance data to measure corporate productivity; 
(25% of time carrying out this managerial responsibility). 
The Petitioner added that the Beneficiary "has trained in [a] costly financial reporting system and 
has thus trained" staff members in the United States arid Egypt on its use. 
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Matter of R- Inc 
• Perform employee performance appraisals, counseling, hiring and terminations as 
needed, in addition to identifying opportunities for employee career training. Due 
to [the Beneficiary's] standing within the Company, he had sole discretion on 
employee hiring and firing (30% of time carrying out this managerial 
' responsibility). 
In the denial decision, the Director noted that the revised job description was not from the foreign 
entity, as instructed, but on the Petitioner's own letterhead and signed by the Beneficiary in his 
capacity as president. The Director found that the Petitioner had not shown that training 
subordinates, or the Beneficiary's direct involvement in purchasing goods, qualified as executive or 
managerial tasks. 
On appeal, the Petitioner submits a new job description from an official of the foreign entity. The 
full description is nearly two pages long, but it consists of five general categories: 
• Supervision (20%) 
• Human Resources Administration (15%) 
• Marketing (30%) 
• Finances (15%) 
• Organization (20%) 
The listed percentages do not match or approximate those provided previously, and the Petitioner 
does not explain the discrepancy. The Beneficiary himself originally did not include any marketing 
responsibilities in his own foreign job description, but the new description indicates that marketing 
took more of his time than any other category. The new list indicates that the Beneficiary 
"identifie[d] opportunities for employee's career training," but does not specify who provided that 
training. As such, it does not resolve or negate the earlier statement that the Beneficiary personally 
trained some subordinates. 
Noting the prior approvals of nonimmigrant petitions to classify the Beneficiary as an intracompany 
transferee in a managerial or executive capacity, the Petitioner contends that those approvals 
demonstrate that the Beneficiary's employment abroad met the requirements of a managerial or 
executive capacity. 
Each visa petition has a separate record of proceedings, and USCIS is not required in this proceeding 
to defer to the earlier approval of a nonimmigrant petition. In the present matter, the Director 
reviewed the record of proceedings and concluded that the Petitioner was ineligible for an extension 
of the nonimmigrant visa petition's validity based on its failure to establish eligibility. In both the 
RFE and the denial decision, the Director clearly articulated the objective statutory and regulatory 
requirements and applied them to the case at hand. If the prior approvals relied on the evidence 
presented in this case, the approvals would constitute error on the part of the Director. 
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Matter of R- Inc 
2. Staffing 
The Director's decisjon did not rely extensively on the staffing of the foreign entity, and therefore, 
the Petitioner does not discuss that issue on appeal. Review of the foreign entity's staffing, however, 
raises additional grounds of concern. The foreign company's organizational chart showed six 
subordinates beneath the Beneficiary: 
President (the Beneficiary) 
~ Sales Manager 
I 
VP-Marketing and Operation Manager 
I 
Sales Accountant 
I 
Telephone Operator 
I 
Shipping Clerk 
In the RFE, the Director stated that the Petitioner had not provided job descriptions for the 
Beneficiary's highest-ranking subordinates. In response, the Petitioner submitted a job description 
for the V'P-Marketing and Operation Manager that largely matched the description for the same 
position (held by the same person) in the United States. The sales manager's job description 
included several tasks that appear to constitute direct sales work rather than management of the sales 
manager's lone subordinate. Those tasks included contacting prospective and existing customers 
and providing price quotes. The job description also referred to "sales leads generated through ... 
advertising campaigns and other promotional efforts," but the Petitioner did not identify the 
employees responsible for conducting those promotional activities. 
The Petitioner has not established that the foreign entity previously employed the Beneficiary 
primarily in a managerial or executive capacity. 
IV. CONCLUSION 
The Petitioner did not establish that the Beneficiary was employed abroad, and will be employed in 
the United States, in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-lnc, ID# 506988 (AAO July 17, 2017) 
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